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Omega World Travel Incorporated, et al. v. Mummagraphics Incorporated, et al.

469 F.3d 348, No. 05-2080 (4th Cir., November 17, 2006)

Affirming the decision of the court below, the Fourth Circuit dismisses claims brought by defendants under CAN-SPAM and Oklahoma statutory and common law arising out of defendants’ receipt of unsolicited commercial email from plaintiff Cruise.com.  Defendants’ claims were premised both on their assertion that the email at issue contained inaccurate contact information, and that plaintiffs continued to send them commercial email after receipt of a complaint from defendants concerning the emails.

On plaintiffs’ motion for summary judgment, the Court dismissed defendants’ claims under Okla. Stat. title 15, Section 776.1A, which allows recipients of unsolicited commercial emails that “misrepresent any information” concerning their origin, regardless of the materiality of such misrepresentation, to recover substantial damages from their sender.   The Court held this provision of Oklahoma’s statute preempted by the federal CAN-SPAM act.

The Court also dismissed defendants’ common law trespass to chattels claim, holding that defendants had failed to establish that they had sustained more than nominal damages as a result of their receipt of 11 commercial emails from Cruise.com.  The absence of more than nominal injury, held the Court, was fatal to this claim.  Said the Court:

Even if Oklahoma law were to make trespass against chattels available for computer intrusions, Mummagraphics’ claim cannot survive summary judgment because the courts that recognize trespass to chattels based upon computer intrusions do not allow “an action for nominal damages for harmless intermeddlings with the chattel.”  Because Mumagraphics failed to submit any evidence that the receipt of eleven commercial email messages placed a meaningful burden on the company’s computer systems or even its other resources, summary judgment was appropriate on this counterclaim.

Finally, the Court dismissed defendants’ CAN-SPAM claims.  The Fourth Circuit held that CAN-SPAM only prohibits the transmission of unsolicited commercial email that contains materially false or misleading information as to its source.  While the emails in question apparently contained some inaccurate information as to their source – they apparently listed a non-functional email address as their source, and indicated incorrectly they came from the server “FL-broadcast.net,” -- their sender was readily identifiable from the content of the emails and their headers.  Thus, the emails contained valid telephone numbers for Cruise.com, as well as a valid Florida address at which it could be contacted.  In addition, the emails contained both a link to the Cruise.com website as well as a link that would enable them to be removed from future mailings.  As such, the inaccuracies were not material, and hence not actionable under CAN-SPAM.

Defendants’ claims that plaintiffs violated CAN-SPAM’s provisions concerning the removal of a recipient from future emails upon request failed because defendants did not show plaintiffs engaged in “a pattern or practice” of failing to honor such requests, a prerequisite to such a claim under CAN-SPAM.   Defendants’ evidence in this regard related solely to plaintiffs’ conduct concerning defendants.  It should be noted that defendants never clicked on the provide link seeking removal from future mailings.  Instead, defendants elected to complain and seek monetary redress, without providing the email address to which the commercial emails in question were sent.

Said the Court:

The CAN-SPAM Act prohibits some material misstatements and imposes opt-out requirements, but it does not make every error or opt-out request into grounds for a lawsuit.  The emails in this case are not actionable under the Act.  Nor can the messages be actionable under Oklahoma’s statues, because allowing a state to attach liability to bare immaterial error in commercial emails would be inconsistent with the federal Act’s preemption text and structure …

It should be noted that, before asserting these claims, defendants posted statements on one of defendant Mumma’s anti-spam websites accusing plaintiffs of being “spammers” who had violated state and federal laws.  Plaintiffs responded by commencing this lawsuit, suing defendants, inter alia for defamation.  The claims at issue were asserted by defendants as counterclaims.

Subsequently, plaintiffs’ defamation claim was tried to a jury, who found plaintiffs had, in fact, been defamed.  Plaintiffs were awarded $2.5 million in damages and punitive damages.

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